The Commission establishes sentencing policies and practices for the federal courts. Each year, the Commission reviews and refines these policies in light of congressional action, decisions from courts of appeals, sentencing-related research, and input from the criminal justice community.

In this section, you can follow the Commission’s work through the amendment cycle as priorities are set, research is performed, testimony is heard, and amendments are adopted.

Amendments

AMENDMENTS TO THE SENTENCING GUIDELINES

Pursuant to section 994(p) of title 28, United States Code,
the United States Sentencing Commission hereby submits to the Congress the
following amendments to the sentencing guidelines and the reasons
therefor. As authorized by such section, the Commission specifies an
effective date of November 1, 1998, for these amendments.

Amendments to the Sentencing Guidelines,
Policy Statements, and Official Commentary

1. Amendment: Section 2B1.1(b) is amended by adding at the end
the following new subdivision:

"(8) If the offense involved theft of property from a national
cemetery, increase by 2 levels.".

The Commentary to §2B1.1 captioned "Application Notes" is
amended in Note 1 by adding at the end the following new paragraph:

"'National cemetery means a cemetery (A) established under
section 2400 of title 38, United States Code, or (B) under the
jurisdiction of the Secretary of the Army, the Secretary of the Navy, the
Secretary of the Air Force, or the Secretary of the Interior.".

The Commentary to §2B1.1 captioned "Background" is
amended by adding at the end the following new paragraph:

" Subsection (b)(8) implements the instruction to the Commission in
Section 2 of Public Law 105101.".

Section 2B1.3(b) is amended by adding at the end the following new
subdivision:

"(4) If property of a national cemetery was damaged or destroyed,
increase by 2 levels.".

The Commentary to §2B1.3 captioned "Application Notes" is
amended in Note 1 by adding at the end the following new paragraph:

"'National cemetery means a cemetery (A) established under
section 2400 of title 38, United States Code, or (B) under the
jurisdiction of the Secretary of the Army, the Secretary of the Navy, the
Secretary of the Air Force, or the Secretary of the Interior.".

The Commentary to §2B1.3 captioned "Background" is
amended by inserting before the first paragraph the following:

" Subsection (b)(4) implements the instruction to the Commission in
Section 2 of Public Law 105101.".

Section 2K1.4(b) is amended by striking "Characteristic" and
inserting "Characteristics"; and by adding at the end the
following new subdivision:

"(2) If the base offense level is not determined under (a)(4), and
the offense occurred on a national cemetery, increase by 2 levels.".

The Commentary to §2K1.4 is amended by adding at the end the
following new application note and background commentary:

"4. 'National cemetery means a cemetery (A) established under
section 2400 of title 38, United States Code, or (B) under the
jurisdiction of the Secretary of the Army, the Secretary of the Navy, the
Secretary of the Air Force, or the Secretary of the Interior.

Background:Subsection (b)(2) implements the directive to the
Commission in Section 2 of Public Law 105101.".

Reason for Amendment: The purpose of this amendment is to
provide an increase for property offenses committed against national
cemeteries. This amendment implements the directive to the Commission in
the Veterans Cemetery Protection Act of 1997, Pub. L. 105101, §
2, 111 Stat. 2202, 2202 (1997). This Act directs the Commission to provide
a sentence enhancement of not less than two levels for any offense against
the property of a national cemetery. In response to the legislation, this
amendment adds a two-level enhancement to §§2B1.1 (Theft), 2B1.3
(Property Destruction), and 2K1.4 (Arson). "National cemetery"
is defined in the same way as that term is defined in the statute.

2. Amendment: Section 2F1.1(b) is amended by striking
subdivision (5) in its entirety and inserting the following:

"(5) (A) If the defendant relocated, or participated in relocating,
a fraudulent scheme to another jurisdiction to evade law enforcement or
regulatory officials; (B) if a substantial part of a fraudulent scheme was
committed from outside the United States; or (C) if the offense otherwise
involved sophisticated concealment, increase by 2 levels. If the resulting
offense level is less than level 12, increase to level 12.".

Section 2F1.1(b) is amended by adding at the end the following new
subdivision:

"(7) If the offense was committed through mass-marketing, increase
by 2 levels.".

The Commentary to §2F1.1 captioned "Application Notes" is
amended by redesignating Notes 14 through 18, as Notes 15 through 19,
respectively; and by inserting after Note 13 the following new Note 14:

"14. For purposes of subsection (b)(5)(B), 'United States
means each of the 50 states, the District of Columbia, the Commonwealth of
Puerto Rico, the United States Virgin Islands, Guam, the Northern Mariana
Islands, and American Samoa.

For purposes of subsection (b)(5)(C), 'sophisticated concealment
means especially complex or especially intricate offense conduct in which
deliberate steps are taken to make the offense, or its extent, difficult
to detect. Conduct such as hiding assets or transactions, or both, through
the use of fictitious entities, corporate shells, or offshore bank
accounts ordinarily indicates sophisticated concealment.".

The Commentary to §2F1.1 captioned "Application Notes" is
amended by adding at the end the following new note:

"20. 'Mass-marketing, as used in subsection (b)(7), means a
plan, program, promotion, or campaign that is conducted through
solicitation by telephone, mail, the Internet, or other means to induce a
large number of persons to (A) purchase goods or services; (B) participate
in a contest or sweepstakes; or (C) invest for financial profit. The
enhancement would apply, for example, if the defendant conducted or
participated in a telemarketing campaign that solicited a large number of
individuals to purchase fraudulent life insurance policies.".

Section 2T1.1(b) is amended by striking subdivision (2) in its entirety
and inserting the following:

The Commentary to §2T1.1 captioned "Application Notes" is
amended by striking Note 4 in its entirety and inserting the following:

"4. For purposes of subsection (b)(2), 'sophisticated concealment
means especially complex or especially intricate offense conduct in which
deliberate steps are taken to make the offense, or its extent, difficult
to detect. Conduct such as hiding assets or transactions, or both, through
the use of fictitious entities, corporate shells, or offshore bank
accounts ordinarily indicates sophisticated concealment.".

Section 2T1.4(b) is amended by striking subdivision (2) in its entirety
and inserting the following:

The Commentary to §2T1.4 captioned "Application Notes" is
amended by striking Note 3 in its entirety and inserting the following:

"3. For purposes of subsection (b)(1), 'sophisticated concealment
means especially complex or especially intricate offense conduct in which
deliberate steps are taken to make the offense, or its extent, difficult
to detect. Conduct such as hiding assets or transactions, or both, through
the use of fictitious entities, corporate shells, or offshore bank
accounts ordinarily indicates sophisticated concealment.".

Section 2T3.1(b) is amended by striking subdivision (1) in its entirety
and inserting the following:

The Commentary to §2T3.1 captioned "Application Notes" is
amended by adding at the end the following new note:

"3. For purposes of subsection (b)(1), 'sophisticated concealment
means especially complex or especially intricate offense conduct in which
deliberate steps are taken to make the offense, or its extent, difficult
to detect. Conduct such as hiding assets or transactions, or both, through
the use of fictitious entities, corporate shells, or offshore bank
accounts ordinarily indicates sophisticated concealment.".

Reason for Amendment: This amendment has three purposes: (1) to
provide an increase for fraud offenses that use mass-marketing to carry
out the fraud; (2) to provide an increase for fraud offenses that involve
conduct, such as sophisticated concealment, that makes it difficult for
law enforcement authorities to discover the offense or apprehend the
offender; and (3) to clarify and conform an existing enhancement that
provides an increase for tax offenses that similarly involve sophisticated
concealment.

First, this amendment adds a two-level enhancement in the fraud
guideline for offenses that are committed through mass-marketing. The
Commission identified mass-marketing as a central component of
telemarketing fraud and also determined that there were other fraudulent
schemes that relied on mass-marketing to perpetrate the offense (for
example, Internet fraud). Accordingly, rather than provide a limited
enhancement for telemarketing fraud only, the Commission determined that a
generally applicable specific offense characteristic in the fraud
guideline would better provide consistent and proportionate sentencing
increases for similar types of fraud, while also ensuring increased
sentences for persons who engage in mass-marketed telemarketing fraud.

Second, this amendment provides an increase for fraud offenses that
involve conduct, such as sophisticated concealment, that makes it
difficult for law enforcement authorities to discover the offense or
apprehend the offenders. The new enhancement provides a two- level
increase and a "floor" offense level of level 12 in the fraud
guideline and replaces the current enhancement for "the use of
foreign bank accounts or transactions to conceal the true nature or extent
of fraudulent conduct." There are three alternative provisions to the
enhancement. The first two prongs address conduct that the Commission has
been informed often relates to telemarketing fraud, although the conduct
also may occur in connection with fraudulent schemes perpetrated by other
means. Specifically, the Commission has been informed that fraudulent
telemarketers increasingly are conducting their operations from Canada and
other locations outside the United States. Additionally, testimony offered
at a Commission hearing on telemarketing fraud indicated that
telemarketers often relocate their schemes to other jurisdictions once
they know or suspect that enforcement authorities have discovered the
scheme. Both types of conduct are specifically covered by the new
enhancement. The third prong provides an increase if any offense covered
by the fraud guideline otherwise involves sophisticated concealment. This
prong addresses cases in which deliberate steps are taken to make the
offense, or its extent, difficult to detect.

Third, this amendment provides a two-level enhancement for conduct
related to sophisticated concealment of a tax offense. The primary purpose
of this amendment is to conform the language of the current enhancement
for sophisticated means in the tax guidelines to the
essentially equivalent language of the new sophisticated concealment
enhancement provided in the fraud guideline. Additionally, the amendment
resolves a circuit conflict regarding whether the enhancement applies
based on the personal conduct of the defendant or the overall offense
conduct for which the defendant is accountable. Consistent with the usual
relevant conduct rules, application of this new enhancement for
sophisticated concealment accordingly is based on the overall offense
conduct for which the defendant is accountable.

3. Amendment: Section 2K2.1(a) is amended in subdivision (4) by
striking "the defendant" after "20, if"; in
subdivision (4)(A) by inserting "the defendant" before "had
one"; in subdivision (4)(B) by striking "is a prohibited person,
and"; and in subdivision (4)(B) by inserting "; and the
defendant (i) is a prohibited person; or (ii) is convicted under 18 U.S.C.
§ 922(d)" after "§ 921(a)(30)".

Section 2K2.1(a)(6) is amended by inserting "(A)" after "defendant";
and by inserting "; or (B) is convicted under 18 U.S.C. § 922(d)"
after "person".

The Commentary to §2K2.1 captioned "Application Notes" is
amended in Note 6 by striking "or" before "(vi)"; and
by inserting "; or (vii) has been convicted in any court of a
misdemeanor crime of domestic violence as defined in 18 U.S.C. §
921(a)(33)" after "§ 922(d)(8)".

The Commentary to §2K2.1 captioned "Application Notes" is
amended in Note 12 in the first paragraph by striking "924(j) or (k),
or 26 U.S.C. § 5861(g) or (h)" and inserting "924 (l) or
(m)"; and in the second paragraph by striking "only" after "if
the"; and by inserting "or 26 U.S.C. § 5861(g) or (h)"
after "922(k)".

Reason for Amendment: This amendment has three purposes: (1) to
change the definition of "prohibited person" in the firearms
guideline so that it includes a person convicted of a misdemeanor crime of
domestic violence; (2) to provide the same base offense levels for both a
prohibited person and a person who is convicted under 18 U.S.C. §
922(d) of transferring a firearm to a prohibited person; and (3) to make
several technical and conforming changes to the firearms guideline.

The first part of the amendment amends Application Note 6 of §2K2.1
(Unlawful Receipt, Possession, or Transportation of Firearms or
Ammunition; Prohibited Transactions Involving Firearms or Ammunition) to
include a person convicted of a misdemeanor crime of domestic violence
within the scope of "prohibited person" for purposes of that
guideline. It also defines "misdemeanor crime of domestic violence"
by reference to the new statutory definition of that term in 18 U.S.C. §
921(a).

This part of the amendment addresses section 658 of the Treasury, Postal
Service, and General Government Appropriations Act, Pub. L. 104208,
110 Stat. 3009 (1996) (contained in the Omnibus Consolidated
Appropriations Act for Fiscal Year 1997). Section 658 amended 18 U.S.C. §
922(d) to prohibit the sale of a firearm or ammunition to a person who has
been convicted in any court of a misdemeanor crime of domestic violence.
It also amended 18 U.S.C. § 922(g) to prohibit a person who has been
convicted in any court of a misdemeanor crime of domestic violence from
transporting or receiving a firearm or ammunition. Section
922(s)(3)(B)(i), which lists the information a person not licensed under
18 U.S.C. § 923 must include in a statement to the handgun importer,
manufacturer, or dealer, was amended to require certification that the
person to whom the gun is transferred was not convicted in any court of a
misdemeanor crime of domestic violence. Section 658 also amended 18 U.S.C.
§ 921(a) to define "misdemeanor crime of domestic violence".

Violations of 18 U.S.C. § 922(d) and (g) are covered by §2K2.1.
The new provisions at § 922(d) (sale of a firearm to a "prohibited
person") and § 922(g) (transporting, possession, and receipt of
a firearm by a "prohibited person") affect Application Note 6 of
§2K2.1, which defines "prohibited person". This part of the
amendment conforms Application Note 6 of §2K2.1 to the new statutory
provisions.

The second part of this amendment increases the base offense level for a
defendant who is convicted under 18 U.S.C. § 922(d), which prohibits
the transfer of a firearm to a prohibited person. Specifically, this part
amends the two alternative base offense levels that pertain to prohibited
persons in the firearms guideline in order to make those offense levels
applicable to the person who transfers the firearm to the prohibited
person. A person who is convicted under 18 U.S.C. § 922(d) has been
shown beyond a reasonable doubt either to have known, or to have had
reasonable cause to believe, that the transferee was a prohibited person.

This part of the amendment derives from a recommendation by the United
States Department of Justice and is generally consistent with a proposed
directive contained in juvenile justice legislation approved by the Senate
Judiciary Committee in 1997.

The third part of this amendment makes two technical and conforming
changes in Application Note 12 of §2K2.1. First, the amendment
corrects statutory references to 18 U.S.C. § 924(j) and (k), which
were added as a result of the Violent Crime Control and Law Enforcement
Act of 1994, Pub. L. 103322, 108 Stat. 1796 (1994). In the Economic
Espionage Act of 1996, Pub. L. 104294, 110 Stat. 3488 (1996),
Congress again amended 18 U.S.C. § 924 and redesignated the
provisions as subsections (l) and (m). The amendment conforms Application
Note 12 to that redesignation. Second, the amendment corrects the
misplacement of the reference to 26 U.S.C. § 5861(g) and (h).

4. Amendment: The Commentary to §2J1.6 captioned "Application
Notes" is amended in Note 3 in the first paragraph by striking "3D1.2"
and inserting "3D1.1"; and by striking the second paragraph in
its entirety and inserting the following as the new second paragraph:

"In the case of a conviction on both the underlying offense and the
failure to appear, the failure to appear is treated under §3C1.1
(Obstructing or Impeding the Administration of Justice) as an obstruction
of the underlying offense, and the failure to appear count and the count
or counts for the underlying offense are grouped together under §3D1.2(c).
(Note that 18 U.S.C. § 3146(b)(2) does not require a sentence of
imprisonment on a failure to appear count, although if a sentence of
imprisonment on the failure to appear count is imposed, the statute
requires that the sentence be imposed to run consecutively to any other
sentence of imprisonment. Therefore, unlike a count in which the statute
mandates both a minimum and a consecutive sentence of imprisonment, the
grouping rules of §§3D1.1-3D1.5 apply. See §3D1.1(b),
comment. (n.1), and §3D1.2, comment. (n.1).) The combined sentence
will then be constructed to provide a 'total punishment that
satisfies the requirements both of §5G1.2 (Sentencing on Multiple
Counts of Conviction) and 18 U.S.C. § 3146(b)(2). For example, if the
combined applicable guideline range for both counts is 30-37 months and
the court determines that a 'total punishment of 36 months is
appropriate, a sentence of 30 months for the underlying offense plus a
consecutive six months sentence for the failure to appear count
would satisfy these requirements. (Note that the combination of this
instruction and increasing the offense level for the obstructive, failure
to appear conduct has the effect of ensuring an incremental, consecutive
punishment for the failure to appear count, as required by 18 U.S.C. §
3146(b)(2).)".

The Commentary to §2J1.6 captioned "Application Notes" is
amended by redesignating Note 4 as Note 5; and by inserting the following
as new Note 4:

"4. If a defendant is convicted of both the underlying offense and
the failure to appear count, and the defendant committed additional acts
of obstructive behavior (e.g., perjury) during the investigation,
prosecution, or sentencing of the instant offense, an upward departure may
be warranted. The upward departure will ensure an enhanced sentence for
obstructive conduct for which no adjustment under §3C1.1 (Obstruction
of Justice) is made because of the operation of the rules set out in
Application Note 3.".

The Commentary to §2P1.2 captioned "Application Notes" is
amended in Note 2 by striking " as amended," after "18
U.S.C. § 1791(c),"; and by inserting "by the inmate"
after "served".

The Commentary to §2P1.2 captioned "Application Notes" is
amended in Note 2 by inserting before the first paragraph the following:

"In a case in which the defendant is convicted of the underlying
offense and an offense involving providing or possessing a controlled
substance in prison, group the offenses together under §3D1.2(c).
(Note that 18 U.S.C. § 1791(b) does not require a sentence of
imprisonment, although if a sentence of imprisonment is imposed on a count
involving providing or possessing a controlled substance in prison,
section 1791(c) requires that the sentence be imposed to run consecutively
to any other sentence of imprisonment for the controlled substance.
Therefore, unlike a count in which the statute mandates both a minimum and
a consecutive sentence of imprisonment, the grouping rules of §§3D1.1-
3D1.5 apply. See §3D1.1(b), comment. (n.1), and §3D1.2,
comment. (n.1).) The combined sentence will then be constructed to provide
a 'total punishment that satisfies the requirements both of §5G1.2
(Sentencing on Multiple Counts of Conviction) and 18 U.S.C. §
1791(c). For example, if the combined applicable guideline range for both
counts is 30-37 months and the court determines a 'total punishment
of 36 months is appropriate, a sentence of 30 months for the underlying
offense plus a consecutive six months sentence for the providing or
possessing a controlled substance in prison count would satisfy these
requirements.".

The Commentary to §3C1.1 captioned "Application Notes" is
amended in Note 6 by striking "Where" and inserting "If";
and by striking "where" both places it appears and inserting "if".

The Commentary to §3C1.1 captioned "Application Notes" is
amended in Note 7 in the first sentence by striking "Where" and
inserting "If"; by striking "both of the" and
inserting "both of an"; by inserting "(e.g., 18
U.S.C. § 3146 (Penalty for failure to appear); 18 U.S.C. § 1621
(Perjury generally))" after "obstruction offense" the first
place it appears; and by striking "the underlying" the first
place it appears and inserting "an underlying".

Section 3D1.1(b) is amended by striking the first sentence in its
entirety and inserting the following:

"Exclude from the application of §§3D1.2-3D1.5 any count
for which the statute (1) specifies a term of imprisonment to be imposed;
and (2) requires that such term of imprisonment be imposed to run
consecutively to any other term of imprisonment.".

The Commentary to §3D1.1 captioned "Application Notes" is
amended by striking Note 1 in its entirety and inserting the following:

"1. Subsection (b) applies if a statute (A) specifies a term of
imprisonment to be imposed; and (B) requires that such term of
imprisonment be imposed to run consecutively to any other term of
imprisonment. See, e.g., 18 U.S.C. § 924(c)
(requiring mandatory term of five years to run consecutively). The
multiple count rules set out under this Part do not apply to a count of
conviction covered by subsection (b). However, a count covered by
subsection (b) may affect the offense level determination for other
counts. For example, a defendant is convicted of one count of bank robbery
(18 U.S.C. § 2113), and one count of use of a firearm in the
commission of a crime of violence (18 U.S.C. § 924(c)). The two
counts are not grouped together pursuant to this guideline, and, to avoid
unwarranted double counting, the offense level for the bank robbery count
under §2B3.1 (Robbery) is computed without application of the
enhancement for weapon possession or use as otherwise required by
subsection (b)(2) of that guideline. Pursuant to 18 U.S.C. § 924(c),
the mandatory five-year sentence on the weapon- use count runs
consecutively to the guideline sentence imposed on the bank robbery count.
See §5G1.2(a).

Unless specifically instructed, subsection (b) does not apply when
imposing a sentence under a statute that requires the imposition of a
consecutive term of imprisonment only if a term of imprisonment is imposed
(i.e., the statute does not otherwise require a term of
imprisonment to be imposed). See, e.g., 18 U.S.C. §
3146 (Penalty for failure to appear); 18 U.S.C. § 924(a)(4)
(regarding penalty for 18 U.S.C. § 922(q) (possession or discharge of
a firearm in a school zone)); 18 U.S.C. § 1791(c) (penalty for
providing or possessing a controlled substance in prison). Accordingly,
the multiple count rules set out under this Part do apply to a count of
conviction under this type of statute.".

The Commentary to §3D1.2 captioned "Application Notes" is
amended in Note 1 in the third sentence by striking "mandates
imposition of a consecutive sentence" and inserting "(A)
specifies a term of imprisonment to be imposed; and (B) requires that such
term of imprisonment be imposed to run consecutively to any other term of
imprisonment"; and by inserting "; id., comment. (n.1)"
after "§3D1.1(b)".

Section 5G1.2(a) is amended by striking "mandates a consecutive
sentence" and inserting "(1) specifies a term of imprisonment to
be imposed; and (2) requires that such term of imprisonment be imposed to
run consecutively to any other term of imprisonment"; and by
inserting "by that statute" after "determined".

The Commentary to §5G1.2 is amended in the last paragraph by
striking the first three sentences and inserting:

"Subsection (a) applies if a statute (1) specifies a term of
imprisonment to be imposed; and (2) requires that such term of
imprisonment be imposed to run consecutively to any other term of
imprisonment. See, e.g., 18 U.S.C. § 924(c)
(requiring mandatory term of five years to run consecutively to any other
term of imprisonment). The term of years to be imposed consecutively is
determined by the statute of conviction, and is independent of a guideline
sentence on any other count.".

The Commentary to §5G1.2 is amended in the last paragraph in the
fourth sentence by inserting ", e.g.," after "See";
and by adding at the end the following new sentence:

"Subsection (a) also applies in certain other instances in which an
independently determined and consecutive sentence is required. See,
e.g., Application Note 3 of the Commentary to §2J1.6 (Failure
to Appear by Defendant), relating to failure to appear for service of
sentence.".

Reason for Amendment: The purpose of this amendment is to
clarify how several guideline provisions, including those on grouping
multiple counts of conviction, work together to ensure an incremental,
consecutive penalty for a failure to appear count. This amendment
addresses a circuit conflict regarding whether the guideline procedure of
grouping the failure to appear count of conviction with the count of
conviction for the underlying offense violates the statutory mandate of
imposing a consecutive sentence. CompareUnited States v.
Agoro, 996 F.2d 1288 (1st Cir. 1993) (grouping rules apply), andUnited States v. Flores, No. 93-3771, 1994 WL 163766 (6th Cir. May
2, 1994) (unpublished) (same), withUnited States v. Packer,
70 F.3d 357 (5th Cir. 1995) (grouping rules defeat statutory purposes of
18 U.S.C. § 3146), cert. denied, 117 S. Ct. 75 (1996). The
amendment maintains the current grouping rules for failure to appear and
obstruction of justice, but addresses internal inconsistencies among
different guidelines and explains how the guideline provisions work
together to ensure an incremental, consecutive penalty for the failure to
appear count. Specifically, the amendment (1) more clearly distinguishes
between statutes that require imposition of a consecutive term of
imprisonment only if imprisonment is imposed (e.g., 18 U.S.C. §
3146 (Penalty for failure to appear); 18 U.S.C. § 1791(b), (c)
(Penalty for providing or possessing contraband in prison)), and statutes
that require both a minimum term of imprisonment and a consecutive
sentence (e.g., 18 U.S.C. § 924(c) (Use of a firearm in
relation to crime of violence or drug trafficking offense)); (2) states
that the method outlined for determining a sentence for failure to appear
and similar statutes ensures an incremental, consecutive punishment; (3)
adds an upward departure provision if offense conduct involves multiple
obstructive acts; (4) makes conforming changes in §2P1.2 (Providing
or Possessing Contraband in Prison) because the relevant statute, 18
U.S.C. § 1791, is similar to 18 U.S.C. § 3146; and (5) makes
conforming changes in §§3C1.1, 3D1.1, 3D1.2, and 5G1.2.

5. Amendment: The Commentary to §3B1.3 captioned "Application
Notes" is amended in the first paragraph of Note 1 in the third
sentence by inserting "public or private" after "position
of"; in the fourth sentence by striking "would apply" and
inserting "applies"; and in the last sentence by striking "would"
and inserting "does.".

The Commentary to §3B1.3 captioned "Application Notes" is
amended by redesignating Note 2 as Note 3; and by inserting the following
as new Note 2:

"2. This enhancement also applies in a case in which the defendant
provides sufficient indicia to the victim that the defendant legitimately
holds a position of private or public trust when, in fact, the defendant
does not. For example, the enhancement applies in the case of a defendant
who (A) perpetrates a financial fraud by leading an investor to believe
the defendant is a legitimate investment broker; or (B) perpetrates a
fraud by representing falsely to a patient or employer that the defendant
is a licensed physician. In making the misrepresentation, the defendant
assumes a position of trust, relative to the victim, that provides the
defendant with the same opportunity to commit a difficult-to-detect crime
that the defendant would have had if the position were held legitimately.".

The Commentary to §3B1.3 captioned "Background" is
amended by inserting after the first sentence the following:

"The adjustment also applies to persons who provide sufficient
indicia to the victim that they legitimately hold a position of public or
private trust when, in fact, they do not.".

Reason for Amendment: The purpose of this amendment is to
establish that the two-level increase for abuse of a position of trust
applies to a defendant who is an imposter, as well as to a person who
legitimately holds and abuses a position of trust. This amendment resolves
a circuit conflict on that issue. CompareUnited States v.
Gill, 99 F.3d 484 (1st Cir. 1996) (adjustment applied to defendant who
posed as licensed psychologist), andUnited States v. Queen,
4 F.3d 925 (10th Cir. 1993) (adjustment applied to defendant who posed as
financial broker), cert. denied, 510 U.S. 1182 (1994), withUnited States v. Echevarria, 33 F.3d 175 (2d Cir. 1994) (defendant
who poses as physician does not occupy a position of trust). The amendment
adopts the majority appellate view and provides that the abuse of position
of trust adjustment applies to an imposter who pretends to hold a position
of trust when in fact he does not. The Commission has determined that,
particularly from the perspective of the crime victim, an imposter who
falsely assumes and takes advantage of a position of trust is as culpable
and deserving of increased punishment as is a defendant who abuses an
actual position of trust.

6. Amendment: Section 3C1.1 is amended by inserting "(A)"
after "If"; by inserting "the course of" after "during";
and by inserting "of conviction, and (B) the obstructive conduct
related to (i) the defendants offense of conviction and any relevant
conduct; or (ii) a closely related offense" after "instant
offense".

The Commentary to §3C1.1 captioned "Application Notes" is
amended in Note 2 in the second sentence by striking "Note 3"
and inserting "Note 4"; in the third sentence by striking "Note
4" and inserting "Note 5"; and in the fourth sentence by
striking "Notes 3 and 4" and inserting "Notes 4 and 5".

The Commentary to §3C1.1 captioned "Application Notes" is
amended in Note 4 in the first paragraph by striking "Note 7"
and inserting "Note 8".

The Commentary to §3C1.1 captioned "Application Notes" is
amended by redesignating Notes 1 through 8, as Notes 2 through 9,
respectively; and by inserting the following as new Note 1:

"1. This adjustment applies if the defendants obstructive
conduct (A) occurred during the course of the investigation, prosecution,
or sentencing of the defendants instant offense of conviction, and
(B) related to (i) the defendants offense of conviction and any
relevant conduct; or (ii) an otherwise closely related case, such as that
of a co-defendant.".

Reason for Amendment: The purpose of this amendment is to
clarify what the term "instant offense" means in the obstruction
of justice guideline, §3C1.1. This amendment resolves a circuit
conflict on the issue of whether the adjustment applies to obstructions
that occur in cases closely related to the defendants case or only
those specifically related to the offense of which the defendant
convicted. CompareUnited States v. Powell, 113 F.3d 464
(3d Cir.) (adjustment applies if defendant attempts to impede the
prosecution of a co-defendant who is charged with the same offense for
which defendant was convicted), cert. denied, 118 S. Ct. 454
(1997), United States v. Walker, 119 F.3d 403 (6th Cir.) (same),
cert. denied, 118 S. Ct. 643 (1997), United States v. Acuna,
9 F.3d 1442 (9th Cir. 1993) (adjustment applies if defendant attempts to
obstruct justice in a case closely related to his own), andUnited
States v. Bernaugh, 969 F.2d 858 (10th Cir. 1992) (adjustment applies
when defendant testifies falsely at his own hearing about co-defendants
roles in the offense), withUnited States v. Perdomo, 927
F.2d 111 (2d Cir. 1991) (cannot apply adjustment based on obstructive
conduct outside the scope of charged offense), andUnited
States v. Partee, 31 F.3d 529 (7th Cir. 1994) (same). The amendment,
which adopts the majority view, instructs that the obstruction must relate
either to the defendants offense of conviction (including any
relevant conduct) or to a closely related case. The amendment also
clarifies the temporal element of the obstruction guideline (i.e., that
the obstructive conduct must occur during the investigation, prosecution,
or sentencing of the defendants offense of conviction).

7. Amendment: The Commentary to §3C1.1 captioned "Application
Notes" is amended in Note 4 in the first sentence of the first
paragraph by striking "enhancement" and inserting "adjustment";
and by inserting "or affect the determination of whether other
guideline adjustments apply (e.g., §3E1.1 (Acceptance of
Responsibility))" after "guideline range"; in the second
sentence by striking "enhancement" and inserting "adjustment";
in subdivision (d) by striking the period at the end and inserting a
semicolon; and by adding at the end the following new subdivision:

"(e) lying to a probation or pretrial services officer about
defendants drug use while on pre-trial release, although such
conduct may be a factor in determining whether to reduce the defendants
sentence under §3E1.1 (Acceptance of Responsibility).".

Reason for Amendment: The purpose of this amendment is to
establish that lying to a probation officer about drug use while released
on bail does not warrant an obstruction of justice adjustment under §3C1.1.
This amendment resolves a circuit conflict on that issue. CompareUnited States v. Belletiere, 971 F.2d 961 (3d Cir. 1992) (lying
about drug use is not obstructive conduct that impedes governments
investigation of instant offense), andUnited States v.
Thompson, 944 F.2d 1331 (7th Cir. 1991) (same), cert. denied,
502 U.S. 1097 (1992), withUnited States v. Garcia, 20
F.3d 670 (6th Cir. 1994) (falsely denying drug use, while not
outcome-determinative, is relevant), cert. denied, 513 U.S. 1159
(1995). The amendment, which adopts the majority view, excludes from
application of §3C1.1 a defendants denial of drug use while on
pre-trial release, although the amendment provides that such conduct may
be relevant in determining the application of other guidelines, such as §3E1.1
(Acceptance of Responsibility).

8. Amendment: Section 5K2.13 is amended by striking the text in
its entirety and inserting:

"A sentence below the applicable guideline range may be warranted
if the defendant committed the offense while suffering from a
significantly reduced mental capacity. However, the court may not depart
below the applicable guideline range if (1) the significantly reduced
mental capacity was caused by the voluntary use of drugs or other
intoxicants; (2) the facts and circumstances of the defendants
offense indicate a need to protect the public because the offense involved
actual violence or a serious threat of violence; or (3) the defendants
criminal history indicates a need to incarcerate the defendant to protect
the public. If a departure is warranted, the extent of the departure
should reflect the extent to which the reduced mental capacity contributed
to the commission of the offense.

Commentary

Application Note:

1. For purposes of this policy statement

"Significantly reduced mental capacity means the defendant,
although convicted, has a significantly impaired ability to (A) understand
the wrongfulness of the behavior comprising the offense or to exercise the
power of reason; or (B) control behavior that the defendant knows is
wrongful.".

Reason for Amendment: The purpose of this amendment is to allow
(except under certain circumstances) a diminished capacity departure if
there is sufficient evidence that the defendant committed the offense
while suffering from a significantly reduced mental capacity. This
amendment addresses a circuit conflict regarding whether the diminished
capacity departure is precluded if the defendant committed a "crime
of violence" as that term is defined in the career offender
guideline. CompareUnited States v. Poff, 926 F.2d 588
(7th Cir.) (en banc) (definition of "non-violent offense"
necessarily excludes a crime of violence), cert. denied, 502 U.S.
827 (1991), United States v. Maddalena, 893 F.2d 815 (6th Cir.
1989) (same), United States v. Mayotte, 76 F.3d 887 (8th Cir.
1996) (same), United States v. Borrayo, 898 F.2d 91 (9th Cir.
1989) (same), andUnited States v. Dailey, 24 F.3d 1323
(11th Cir. 1994) (same), withUnited States v. Chatman,
986 F.2d 1446 (D.C. Cir. 1993) (court must consider all the facts and
circumstances to determine whether offense was non-violent; terms are not
mutually exclusive), United States v. Weddle, 30 F.3d 532 (4th
Cir. 1994) (same), andUnited States v. Askari, _F. 3d_ ,
1998 WL 164561 (3d Cir. 1998) (en banc) ("non-violent offenses"
are those that do not involve a reasonable perception that force against
persons may be used in committing the offense), abrogatingUnited
States v. Rosen, 896 F.2d 789 (3d Cir. 1990) (non-violent offense
means the opposite of crime of violence). The amendment replaces the
current policy statement with a new provision that essentially represents
a compromise approach to the circuit conflict. The new policy statement
allows a diminished capacity departure if there is sufficient evidence
that the defendant committed the offense while suffering from a
significantly reduced mental capacity, except under the following three
circumstances: (1) the significantly reduced mental capacity was caused by
the voluntary use of drugs or other intoxicants; (2) the facts and
circumstances of the defendants offense indicate a need to protect
the public because the offense involved actual violence or a serious
threat of violence; or (3) the defendants criminal history indicates
a need to incarcerate the defendant to protect the public. The amendment
also adds an application note that defines "significantly reduced
mental capacity" in accord with the decision in United States v.
McBroom, 124 F.3d 533 (3d Cir. 1997). The McBroom court
concluded that "significantly reduced mental capacity" included
both cognitive impairments (i.e., an inability to understand the
wrongfulness of the conduct or to exercise the power of reason) and
volitional impairments (i.e., an inability to control behavior
that the person knows is wrongful). The application note specifically
includes both types of impairments in the definition of "significantly
reduced mental capacity".

9. Amendment: Section 5B1.3(d) is amended by adding at the end
the following new subdivision:

"(6) Deportation

If (A) the defendant and the United States entered into a stipulation of
deportation pursuant to section 238(c)(5) of the Immigration and
Nationality Act (8 U.S.C. § 1228(c)(5)); or (B) in the absence of a
stipulation of deportation, if, after notice and hearing pursuant to such
section, the Attorney General demonstrates by clear and convincing
evidence that the alien is deportable -- a condition ordering deportation
by a United States district court or a United States magistrate judge.".

Section 5D1.3(d) is amended by adding at the end the following new
subdivision:

"(6) Deportation

If (A) the defendant and the United States entered into a stipulation of
deportation pursuant to section 238(c)(5) of the Immigration and
Nationality Act (8 U.S.C. § 1228(c)(5)); or (B) in the absence of a
stipulation of deportation, if, after notice and hearing pursuant to such
section, the Attorney General demonstrates by clear and convincing
evidence that the alien is deportable -- a condition ordering deportation
by a United States district court or a United States magistrate judge.".

Section 5D1.3(e)(5) is amended by striking "to provide just
punishment for the offense,".

Section 5B1.3(c) is amended by inserting "(Policy Statement)"
before "The following".

Section 5B1.3(d) is amended by inserting "(Policy Statement)"
before "The following".

Section 5B1.3(e) is amended in the title by adding "(Policy
Statement)" at the end.

Section 5D1.3(c) is amended by inserting "(Policy Statement)"
before "The following".

Section 5D1.3(d) is amended by inserting "(Policy Statement)"
before "The following".

Section 5D1.3(e) is amended in the title by adding "(Policy
Statement)" at the end.

Reason for Amendment: The purpose of this amendment is to make
several technical and conforming changes to the guidelines relating to
conditions of probation and supervised release. The amendment has three
parts. First, the amendment adds to §5B1.3 a condition of probation
regarding deportation, in response to section 374 of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L 104208,
110 Stat. 3009 (1996). That section amended 18 U.S.C. § 3563(b) to
add a new discretionary condition of probation with respect to
deportation. Second, this amendment deletes the reference in the
supervised release guideline to "just punishment" as a reason
for the imposition of curfew as a condition of supervised release. The
need to provide "just punishment" is not included in 18 U.S.C. §
3583(c) as a permissible factor to be considered in imposing a term of
supervised release. Third, this amendment amends the guidelines pertaining
to conditions of probation and supervised release to indicate that
discretionary (as opposed to mandatory) conditions are advisory policy
statements of the Commission, not binding guidelines.

10. Amendment: Section 5K2.0 is amended in the first paragraph
in the first sentence by inserting a comma after "3553(b)"; by
striking "guideline" and inserting "guidelines"; in
the second sentence by striking "guidelines" and inserting "guideline
range"; in the third sentence by striking "controlling"
after "The"; by striking "can only be made by the courts"
and inserting "rests with the sentencing court on a case-specific
basis"; in the last sentence by inserting "determining"
after "consideration in"; by striking "guidelines" and
inserting "guideline range"; by striking "guideline level"
and inserting "weight"; by inserting "under the guidelines"
after "factor"; and by inserting before the period at the end "or
excessive".

Section 5K2.0 is amended in the last paragraph by striking "An"
and inserting "Finally, an"; by striking "not ordinarily
relevant" and inserting ", in the Commissions view, 'not
ordinarily relevant"; and by striking "in a way that is
important to the statutory purposes of sentencing".

The Commentary to §5K2.0 is amended by inserting before the first
paragraph the following:

" The United States Supreme Court has determined that, in reviewing
a district courts decision to depart from the guidelines, appellate
courts are to apply an abuse of discretion standard, because the decision
to depart embodies the traditional exercise of discretion by the
sentencing court. Koon v. United States, 116 S. Ct. 2035 (1996).
Furthermore, 'before a departure is permitted, certain aspects of the case
must be found unusual enough for it to fall outside the heartland of cases
in the Guideline. To resolve this question, the district court must make a
refined assessment of the many facts bearing on the outcome, informed by
its vantage point and day-to-day experience in criminal sentencing.
Whether a given factor is present to a degree not adequately considered by
the Commission, or whether a discouraged factor nonetheless justifies
departure because it is present in some unusual or exceptional way, are
matters determined in large part by comparison with the facts of other
Guidelines cases. District Courts have an institutional advantage over
appellate courts in making these sorts of determinations, especially as
they see so many more Guidelines cases than appellate courts do.
Id. at 2046-47.".

Reason for Amendment: The purpose of this amendment is to
reference specifically in the general departure policy statement the
United States Supreme Courts decision in United States v. Koon,
116 S. Ct. 2035 (1996). This amendment (1) incorporates the principal
holding and key analytical points from the Koon decision into the
general departure policy statement, §5K2.0; (2) deletes language
inconsistent with the holding of Koon; and (3) makes minor,
non-substantive changes that improve the precision of the language of §5K2.0.